Citation Nr: 9929923
Decision Date: 10/20/99 Archive Date: 10/29/99
DOCKET NO. 95-25 283 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Manila,
Philippines
THE ISSUE
Who of the contesting claimants, [redacted] and [redacted], may be
recognized as the surviving spouse of the veteran for
purposes of VA benefits.
WITNESS AT HEARING ON APPEAL
[redacted] and her son
ATTORNEY FOR THE BOARD
K. S. Hughes, Associate Counsel
INTRODUCTION
The veteran, who served on active duty from September 1928 to
March 1948, died in February 1976. In this contested claim,
two women, [redacted] and [redacted], seek recognition as the
surviving spouse of the veteran for VA death benefit
purposes.
Service connection was established for the cause of the
veteran's death and [redacted] had been paid dependency and
indemnity compensation (DIC) as the veteran's surviving
spouse from March 1976 until benefits were terminated
effective April 1, 1996, based upon a District Counsel's
opinion which held that the relationship between the veteran
and [redacted] which existed prior to the veteran's purported
marriage to [redacted] could be considered a legal and valid
marriage. [redacted] has appealed the determination by the
Department of Veterans Affairs (VA) Regional Office (RO) that
she can no longer be recognized as the veteran's surviving
spouse. Thus, as this matter comes before the Board of
Veterans' Appeals (Board), [redacted] is the appellant and
[redacted] is the appellee.
The Board notes that in June 1999, [redacted], the daughter
of [redacted], notified the RO that [redacted] died on May 19,
1999, and submitted a copy of the Certificate of Death.
Additionally, [redacted] inquired as to her entitlement to
accrued benefits in connection with [redacted]'s death.
Inasmuch as this issue has not been developed or certified
for appellate review, it is not for consideration at this
time. It is, however, being referred to the RO for
appropriate action.
FINDINGS OF FACT
1. [redacted] lived with the veteran from 1932 until 1940,
during which time six (6) children were born of this
relationship.
2. The veteran, upon reenlistment in 1934, 1937, and 1940,
declared that he was married and that [redacted] was his
dependent.
3. In 1940 the veteran abandoned [redacted] and began a
relationship with [redacted]; the veteran in 1940 and thereafter
maintained that he had never legally married [redacted] but that
she had been his "concubine" or "common-law wife."
4. Documents dated in the 1940's, one of which was signed by
[redacted], refer to [redacted] as the "common-law wife" of the
veteran; inasmuch as common law marriage is not recognized in
the Philippines, the evidence does not establish that [redacted]
and the veteran entered into a marriage valid under
Philippine law.
5. [redacted] married the veteran in February 1941; she lived
with him continuously thereafter until his death in February
1976; six (6) children were born of this relationship; and
she had been recognized by VA as his spouse and his widow
until DIC benefits were terminated effective April 1, 1996.
CONCLUSION OF LAW
[redacted] is the surviving spouse of the veteran for purposes
of VA benefits. 38 C.F.R. §§ 3.50, 3.52, 3.53 (1998).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Factual Background
The veteran was born in April 1907. He was a Muslim and his
religion was Islam. He served as an enlisted member of the
Philippine Scouts from September 1928 until he accepted a
commission in April 1942. Thereafter, he served as an
officer until March 1948, when the military determined that
he was permanently incapacitated for further active military
service as the result of disability. He was in receipt of
disability compensation during his lifetime and [redacted], also
a Muslim whom he had married on February 11, 1941, under
Muslim customs, was recognized by VA as his spouse. The
veteran died in February 1976 and [redacted] was awarded and
paid DIC benefits as the veteran's surviving spouse.
In September 1992, an application for death benefits was
received from [redacted], a Catholic, who claimed that she and
the veteran were married on September 25, 1933, by a Chaplain
of the U.S. Army, and lived together as husband and wife
until the veteran left her in 1941 to live with [redacted].
On enlistment records dated September 4, 1928, and September
11, 1931, the veteran declared that he was single. On an
enlistment record dated September 11, 1934, the veteran
declared that he was married and had one child; he listed
[redacted] and [redacted] as dependents. On an enlistment record
dated September 11, 1937, the veteran declared that he was
married and had three children; he listed [redacted], [redacted],
[redacted], and [redacted] as dependents. On an enlistment record
dated September 11, 1940, the veteran declared that he was
married and that he had a wife, a son, and 2 daughters who
were dependent on him for support.
In an October 1948 letter, the veteran requested that the
named beneficiaries on his service records be removed and
that his wife, [redacted], and his children, [redacted], [redacted],
[redacted]and [redacted], be entered as beneficiaries. He stated
that he had married [redacted] in 1941.
In an August 1956 application for compensation, the veteran
reported that he was married to [redacted]. He stated that the
marriage to [redacted] was his first. He listed 6 children born
of his marriage to [redacted], the children being named [redacted],
[redacted], [redacted], [redacted], [redacted], and [redacted].
In December 1964, a marriage certificate dated in February
1941 was submitted. This document reflects that Hadji
Salili, a Mohammedan priest, certified that he had solemnized
the marriage of [redacted] to the veteran on February 11, 1941.
The ceremony was witnessed by six individuals.
A death certificate reflects that the veteran died on
February [redacted] 1976. [redacted] applied for Dependency and
Indemnity Compensation (DIC) in that same month. A May 1976
rating action established service connection for the cause of
the veteran's death. In June 1976, the RO notified [redacted]
that she had been awarded DIC benefits.
In an August 1976 letter, [redacted] wrote to the VA indicating
that she was the unremarried widow of the veteran and she
requested benefits. She asserted that she and the veteran
were married under Muslim ceremony on February 15, 1934, and
that the veteran died on February [redacted] 1976. She used the
veteran's surname in her signature. The RO requested
documentation to verify her claim. No further information
was submitted.
In November 1987, [redacted] again wrote to the VA alleging that
she was the widow of the veteran. She requested the status
of her claim and wanted to be advised as to what
documentation was required. She did not use the veteran's
surname. The RO sent [redacted] a copy of the 1976 request for
documentation.
In a January 1989 affidavit, [redacted] and [redacted]
stated that they personally knew the veteran and [redacted];
that said couple married on September 25, 1933, at Pettit
Barracks, Zamboanga City, Philippines; that the veteran was
then a corporal of the U.S. Army assigned to Company C, 45th
Infantry, then based at Port Pilar, Zamboanga City; that they
attended the wedding which was officiated by a Chaplain of
the U.S. Army assigned to Port Pilar and that they also
attended the small reception the couple tendered.
[redacted] wrote to the VA in September 1990, asking whether her
husband's records were at the RO. She stated that she would
like to know if these records showed her husband's middle
name. The RO responded that the veteran's middle name was
not a matter of record in the files of the VA.
In March and June 1991, [redacted] requested an update as to the
status of her claim. She was asked by the RO to comply with
their 1976 request for more information. In another June
1991 letter, [redacted] indicated that she personally delivered
the requested information to the RO. She stated that she
could not submit the veteran's military records, as they were
in his possession at the time of his death in 1976. She also
stated that his second wife's name appeared on the death
certificate.
The Office of the City Register, in a July 1991
certification, stated that marriage licenses prior to 1942
were all destroyed by the war. Therefore, a true copy of the
marriage of [redacted] and the veteran could not be issued.
[redacted] was told to try and obtain further verification from
the archives of the National Statistics Office.
In September 1992, [redacted] submitted an application to
receive DIC benefits. She indicated that she married the
veteran on September 25, 1933. The veteran was noted as
having been married two times. His second marriage was to
[redacted] in February 1941. [redacted] indicated that both
marriages ended with the veteran's death on February [redacted] 1976.
She stated that [redacted], a Muslim, had convinced the veteran
to live with her. She indicated that this did not bother her
because [redacted] knew that the veteran was married to her,
[redacted], and knew that they had two children at the time.
When the veteran retired in 1948, [redacted] indicated that he
was paying her a small amount of money every month as an
allowance, but had been giving more attention to [redacted]. In
1968, she reported that she left for Manila.
The RO received documentation from the National Statistics
Office of the Philippines in November 1992. This information
revealed that there was no record of [redacted]'s marriage to
the veteran, but that [redacted]'s name appeared on his death
certificate as his spouse. It was also established that
records of [redacted] and [redacted]' births were destroyed during
the liberation of Manila. Their births could not be
verified.
In an October 1992 letter, [redacted] indicated that she was
Catholic and that the veteran was a Muslim. She stated that
she and the veteran were not married in a Muslim marriage
ceremony. It was also noted that [redacted] was a Muslim, and
[redacted] and the veteran were married in a Muslim ceremony.
She stated that the Army Chaplain who had performed the
wedding ceremony is dead.
In January 1993, [redacted] submitted affidavits from two
individuals, [redacted] and [redacted], in support of her
claim. Each stated that [redacted] and the veteran were married
in September 1933. It was stated that [redacted] informed the
affiants that the veteran was convinced to live with [redacted]
in 1941. It was also stated that [redacted] left for Manila in
1964, that she and the veteran never reconciled, and that she
never remarried.
[redacted], in a December 1992 statement, indicated that the
veteran left her to live with [redacted] in 1941 because [redacted]
was pregnant. She indicated that her monthly allowance was
16 pesos which stopped in 1964. Thereafter, she left for
Manila. There was no written agreement or court order of
separation and they never applied for a divorce or annulment.
She stated that she had not lived with another man and had
not given birth to another child.
In January 1993, the RO inquired as to why [redacted] waited 17
years from the death of the veteran to bring her claim for
benefits. She stated that she had filed earlier than 17
years after the death, submitting a copy of her November 1987
letter. She stated that the delay was due to the fact that
she only had a third grade education, she did not have the
veteran's military records, did not know that the veteran had
died until her son, [redacted], told her in 1981, was not given
the application for benefits until September 1992, and spent
some time trying to collect evidence.
In April 1993, the RO notified [redacted] that records showed
that the veteran was married to [redacted] on September 25,
1933, by an Army Chaplain and on February 15, 1934, under
Muslim ceremony. [redacted] was told that she might not be the
veteran's widow as his marriage to [redacted] still validly
existed at the time she [[redacted]] and the veteran were
married. The RO requested that [redacted] explain why she
married the veteran if she knew that he was legally married
to another woman and whether she knew of any legal impediment
on the part of the veteran when she married him.
In April 1993, the RO also wrote to [redacted] asking that she
explain why she stated in August 1976 that she was married to
the veteran under Muslim Ceremony on February 15, 1934, but
in a letter dated in October 1992 indicated that she and the
veteran had not been married in a Muslim Ceremony.
Two affidavits, dated in April 1993, from [redacted] and
[redacted], repeated what they had stated in their
affidavit of January 1989.
In a May 1993 letter, [redacted] indicated that the 1976 letter
which indicated that she and the veteran had been married in
a Muslim ceremony in 1934 might have been a forgery.
[redacted] responded to the RO's request for clarification in a
May 1993 letter. She stated that before she married the
veteran she personally and honestly believed that there was
no legal impediment on his part to marry her, because before
their wedding, in accordance with Muslim custom and
tradition, elders of both parties "clarified everything"
and she had been assured that there was no legal impediment
on his part. She stated that she was the legal widow of the
veteran because she received a subsistence allowance from the
United States Army when the veteran reported to the military
after the liberation. She also stated that during his
lifetime, and even after his death, no legal questions were
raised regarding their marriage. Lastly, they lived
harmoniously together with their children.
[redacted] submitted additional letters indicating that she
married the veteran first, remained his wife, and was
entitled to benefits as his widow.
An August 1993 letter from the RO indicated that [redacted] was
not the surviving spouse of the veteran since she had not
submitted adequate proof to establish their marriage. It was
noted that evidence of the marriage of [redacted] to the veteran
was of record.
However, in a January 1994 letter, after further
investigation, the RO discovered that the veteran had listed
[redacted] as his wife on several enlistment records beginning
in 1934. A field investigation was to be conducted to secure
more evidence.
A Report of Field Examination, dated in March 1995, reflects
that the field examiner took depositions from both [redacted]
and [redacted], as well as from [redacted] and
[redacted]. The examiner also interviewed
[redacted] and the following individuals who had signed
affidavits in support of [redacted]'s claim: [redacted],
and [redacted] and [redacted], husband and wife.
[redacted] was deposed in September 1994. She testified that
she and the veteran were married on February 11, 1941. She
indicated that when she met the veteran he was married, but
that before she married him he had assured her that he had
been divorced for a long time. She stated that the veteran
had confirmed that he had divorced [redacted] prior to her
marriage to him. [redacted] also stated that she had heard that
[redacted] had lived in a common law marriage with another man
and had had a child with that man. She did not know the
man's name or where they lived together. [redacted] also stated
that when [redacted]'s daughter, [redacted], began elementary
school she had lived with the veteran and her.
[redacted] was deposed in November 1994. She testified that she
had met the veteran in 1932 and begun living with him in June
1932. She stated that she continued to live with him until
May 1940, when the veteran sent her to her parents' home to
be cared for due to news of impending war. She returned to
the veteran later in 1940, but the veteran had gone to live
with [redacted]. She stated that [redacted] knew that she,
[redacted], was married to the veteran because they went, as a
married couple, to [redacted]'s house for her father's wake.
She again indicated that she and the veteran were married by
a Chaplain and were never married in a Muslim ceremony. She
did not protest the situation with [redacted] because the
veteran was still giving her money. [redacted] stated that she
never remarried. From 1940 to 1964 she lived in Zamboanga
City, in 1964 she went to Manila, and in 1973 she moved in
with her niece, [redacted], in Sapang Palay.
As indicated above, the field examiner also took a deposition
from [redacted], a 79 year old widow of a
Philippine Scout. She stated that she and her deceased
husband had lived in Petit Barracks, Port Pilar, before the
outbreak of World War II and knew [redacted] as the wife of the
veteran. [redacted] stated that she had been
present during the wedding of the veteran and [redacted] and
that at that time others at the wedding pointed out [redacted],
who was also present together with a small boy, as the wife
of the veteran.
The field examiner reported that he interviewed those who
have provided affidavits in support of [redacted]'s claim and
that they confirmed their affidavits and their signatures.
[redacted] stated that he had lived at Samboanga City
from 1924 to 1974 and, according to the field examiner, his
mental capacity to remember events in 1933 appeared to be
vivid. [redacted] stated that he had known the veteran
and [redacted], his wife, since 1936; that during that time
there were only 150 families in the area and everyone knew
everybody, including those who were living in Fort Pilar.
His wife, [redacted], stated that as a child of age 10 years or
so she came to know [redacted] because they were neighbors. She
said that when she was about 10 years old, because she was
curious, she witnessed the marriage ceremony of the veteran
and [redacted] at the military camp and that the marriage had
been officiated by the military Chaplain. The examiner
indicated that her memory seemed fair. The examiner stated
that all possible persons supposedly knowledgeable about this
issue were contacted and the case was referred to the RO for
appropriate action.
In April 1995, the RO requested an opinion from the District
Counsel to determine whether the marriage between the veteran
and [redacted] could be considered legal and valid in view of
Article 79 of the Civil Code of the Philippines as it
pertains to mixed marriages between Christians and non-
Christians and the "deemed valid marriage rule."
In an 11 page opinion, with attachments, dated in April 1995,
District Counsel held that enlistment records of September
11, 1934, September 11, 1937, and September 11, 1940, as well
as affidavits from witnesses who allegedly were present
during the marriage, corroborated the fact that the veteran
married [redacted] on September 25, 1933, in a civil ceremony.
District Counsel held that the veteran did not have to
convert to Christianity or to Catholicism to validly marry
[redacted] under Philippine law (Act 3613 Sec. 25). District
Counsel noted that the record also showed that the veteran
married as a Muslim to [redacted] in a Muslim ceremony under Act
3613 Sec. 24 on February 11, 1941, but that there was no
evidence of a divorce by Muslim custom or under Act 2710 by
the veteran prior to his marriage to [redacted]. District
Counsel stated that common-law marriage is not recognized in
the Philippines. It was also pointed out that for VA
purposes, the Muslim certification of marriage in 1941 was
sufficient to create a presumption of a valid marriage and
that the presumption of continuity of the first 1933 marriage
ordinarily would yield to the presumption of legality of the
second marriage. However, District Counsel cited a court
case which held that a contention that a party was never
previously married is tantamount to a clear admission that
the first marriage was not terminated by divorce since a
person who claimed never to have been married was not likely
to seek a divorce. The court held that under such
circumstances, the presumption that there had been a
dissolution of the first marriage by divorce was absolutely
untenable. District Counsel further pointed out that a
Muslim customary divorce cannot dissolve or at least
automatically overcome mixed marriage under civil ceremony as
was the case here, and that Muslim divorce was not even
recognized under Philippine law before 1950. In view of the
above, District Counsel held that the marriage between the
veteran and [redacted] can be considered legal and valid under
Philippine law and that having no divorce, the veteran could
not legally marry [redacted] in 1941 in an otherwise valid Moro
marriage.
In a May 1995 letter, [redacted] was notified that her DIC
benefits had been disallowed as the veteran had a prior
existing valid marriage to [redacted] at the time she married
him in 1941. [redacted] filed a notice of disagreement.
In a July 1995 letter, [redacted] stated that [redacted]'s claim
was mere conjecture, speculation, and hearsay and was a
product of pure harassment motivated by greed. She stated
that [redacted] had not presented sufficient evidence of a
marriage to the veteran, that letters from the veteran dating
from 1940 to 1950 show that she was his only legal spouse,
and that [redacted] lived with another man and had a daughter in
1946 or 1949. She also indicated that [redacted] did not use
the veteran's family name, and that she had no knowledge of a
prior marriage. In support of her claim she submitted copies
of documents dated in 1940, 1945, 1947; and 1950. The
documents can be summarized as follows:
A letter dated October 17, 1940, allegedly written by a
municipal judge, addressed to a Mr. [redacted],
contained the following: "Is B still living? It is
supposed that A did live with B first. A should marry
B. But A can legally marry C despite any objection on
the part of B." ([redacted] stated that A referred to the
veteran, B referred to [redacted] and C referred to
herself.)
In a letter dated November 14, 1940, with the veteran's
name typed at the closing, the veteran, in accordance
with an amicable agreement reached at the Office of the
Public Defender, agreed to pay 15 pesos per month to
[redacted] through the Office of the Public Defender to
defray the cost of maintenance of the 2 children he had
with [redacted]. The veteran stated that it was understood
that this support would stop as soon as [redacted] married
or lived as a concubine with another man.
In letter dated June 12, 1945, addressed to his
commanding officer, the veteran stated that the claim of
[redacted] stating that she was his legal wife was not
true. He stated that he did not sign a marriage
certificate or paper to that effect, but stated that she
was his concubine and they separated in November 1940.
However, as they had two children together an agreement
was made at the Office of the Public Defender whereby he
agreed to pay 15 pesos per month in support until she
married or was a concubine to another. He also
indicated that since the separation, he was legally
married to his present wife and that she had agreed to
take [redacted]'s children if [redacted] would agree to
release them. He requested that "arrangement be made
if possible by your organization whereby these children
will be placed in my present wife's custody."
In a letter dated January 15, 1947, addressed to whom it
may concern, the veteran certified that he not been
legally married to any woman prior to his marriage to
[redacted]. He stated that he made the certificate on the
record to prove that his only legally valid marriage was
to [redacted].
In an affidavit dated March 29, 1947, two individuals
stated that [redacted] and the veteran lived as "common-
law husband and common-law wife" from the year 1932 to
1940 and that out of their union were born 6 children
between 1933 and 1939, although only [redacted] and [redacted]
were living as of that date. One of the affiants stated
that she had been a neighbor of [redacted] and the veteran
for several years and had always been present at the
time of the children's birth and baptism. The other
affiant stated that her father, a Mohammedan priest,
baptized the children and that she had always been
present during the ceremony.
In a letter dated May 20, 1947 (with a date stamp of
June 10, 1947), addressed to the veteran's Commanding
Officer, [redacted] stated that she was the "common-law
wife of the veteran from the year 1932 to 1940 and that
from such union they had 2 children, [redacted] and [redacted].
She requested that the commanding officer deduct money
from the veteran to help support their two children
since the veteran had left her in 1940 and had not
provided any support for the 2 children.
A statement dated June 28, 1950, written and signed by a
Public Defender (and also signed by the veteran and
[redacted]) reflects that the veteran and [redacted] agreed
that their children, [redacted] and [redacted], would live with
the veteran, and he would take charge of their
education.
An October 1995 affidavit indicated that the veteran and
[redacted] were married. The affiants stated that they knew for
a fact that the veteran was never married to anyone but
[redacted].
At a November 1995 hearing, [redacted] stated that she did not
know that there was a legal impediment to her marriage with
the veteran. She knew about [redacted], but also knew that they
were not legally married. She testified that she had a
whirlwind romance with the veteran and when he presented
himself as single, she believed him. [redacted]'s son testified
that he knew his father to be married only to his mother. He
also testified that, at the time of the veteran's death, the
veteran told his children that there was a box with documents
in it which would show that he was only married to their
mother. [redacted] testified that although she knew of the
marital relationship between [redacted] and the veteran, she
thought it was not legal, but a common law marriage.
A Report of Field Examination, dated in February 1998,
reflects that such examination was conducted for the purpose
of obtaining original copies of the documents which [redacted]
submitted in July 1995 in support of her claim, dated in
1940, 1945, 1947; and 1950, and to contact the Public
Defender's Office. The Report further reflects that
[redacted]'s daughter, [redacted], volunteered to lend the
documents on behalf of [redacted], who fully depended on her
daughter in pursing her claim with the VA because her memory
was failing. Additionally, in an attempt to obtain records
from the Public Defenders Office, the Office of the
Department of Labor, Zamboanga City, was contacted. It was
discovered that the Public Defenders Office is no longer a
unit of the Department of Labor and the documents involving
the Public Defenders Office, dated in 1940 and 1950, were not
available. It was suggested that these records might be in
the archives of the Department of Labor, Manila. A March
1998 Report of Field Examination reflects that an attempt to
secure copies of the 1940 and 1950 documents involving the
Public Defenders Office from the Department of Labor and
Employment in Manila was unsuccessful.
Forensic examination of the original documents borrowed from
[redacted] was performed to determine the authenticity of such
evidence. A Forensic Laboratory Report, dated in October
1998, reflects that, with the exception of the ink used to
produce one of the signatures on the March 1947 affidavit,
these documents were produced using inks that were consistent
with the inks from the "Collection" which were commercially
available on the purported dates. Paper examinations did not
develop any evidence that the documents were not created on
the dates appearing on each document. Additionally, the
documents were processed for indented writing but no
information was developed which would indicate that the
documents were not created on the dates appearing on the
documents.
Pertinent Regulations
"Wife" means a person whose marriage to the veteran meets
the requirements of 38 C.F.R. § 3.1(j). 38 C.F.R. § 3.50(a).
"Marriage" means a marriage valid under the law of the
place where the parties resided at the time of the marriage
or the law of the place where the parties resided when the
right to benefits accrued. 38 C.F.R. § 3.1(j).
The term "widow" means a woman who was the wife of the
veteran at the time of his death, and who lived with him
continuously from the date of marriage to the date of his
death and who has not remarried or has not since the death of
the veteran, and after September 19, 1962, lived with another
man and held herself out openly to the public to be the wife
of such other man. On or after January 1, 1971, it is
required that she be unmarried and not living with another
person of the opposite sex and holding herself out openly to
the public as the spouse of such other person. 38 C.F.R.
§ 3.50(b).
Where an attempted marriage of a claimant to the veteran was
invalid by reason of a legal impediment, the marriage will
nevertheless be deemed valid if:
(a) The marriage occurred 1 year or more before the
veteran died or existed for any period of time if a
child was born of the purported marriage or was born to
them before such marriage (see § 3.54(d)), and
(b) The claimant entered into the marriage without
knowledge of the impediment, and
(c) The claimant cohabited with the veteran
continuously from the date of marriage to the date of
his or her death as outlined in § 3.53, and
(d) No claim has been filed by a legal surviving spouse
who has been found entitled to gratuitous death benefits
other than accrued monthly benefits covering a period
prior to the veteran's death. 38 C.F.R. § 3.52.
The requirement that there must be continuous cohabitation
from the date of marriage to the date of death of the veteran
will be considered as having been met when the evidence shows
that any separation was due to the misconduct of, or procured
by, the veteran without the fault of the surviving spouse.
Temporary separations which ordinarily occur, including those
caused for the time being through fault of either party, will
not break the continuity of the cohabitation. The statement
of the surviving spouse as to the reason for the separation
will be accepted in the absence of contradictory information.
If the evidence establishes that the separation was by mutual
consent and that the parties lived apart for purposes of
convenience, health, business, or any other reason which did
not show an intent on the part of the surviving spouse to
desert the veteran, the continuity of the cohabitation will
not be considered as having been broken. 38 C.F.R. § 3.53.
Analysis
The fundamental question to be decided in this case is
whether or not the record shows that the veteran and [redacted]
were ever married or, as the veteran claimed in 1940 and
thereafter, that they simply lived together, she being his
"common-law wife" or "concubine."
The evidence in this case shows that [redacted] began living
with the veteran in June 1932 and that she and the veteran
had 6 children between 1933 and 1939, only 2 of whom were
apparently still alive as of November 1940. The evidence
also shows that the veteran and [redacted] separated sometime
during 1940, when the veteran began a relationship with
[redacted], and that the veteran and [redacted] entered into an
agreement at the Office of the Public Defender in November
1940 by which the veteran agreed to pay support for the 2
children he had with [redacted] until such time as [redacted]
married or lived as a concubine with another man.
The record also shows that enlistment records dated in 1928
and 1931 reflect that the veteran declared that he was
single. On an enlistment record dated in 1934 the veteran
declared that he was married and had one child; he listed
[redacted] and [redacted] as dependents. On an enlistment record
dated in 1937, the veteran declared that he was married and
had three children; he listed [redacted], [redacted], [redacted], and
[redacted] as dependents. On an enlistment record dated in
September 1940, the veteran declared that he was married and
that he had a wife, a son, and 2 daughters who were dependent
on him for support. Thus, in September 1940 the veteran
declared that he was married and had 3 children, however, in
November 1940 he indicated that he and [redacted] were not
married, that she was free to marry, and that he agreed to
provide support for the 2 surviving children he had as the
result of his relationship with [redacted]. Apparently, in
October 1940 an opinion was obtained from a Municipal Judge
which indicated that even though the veteran had lived with
[redacted] and should marry her, he could legally marry another
despite any objection on the part of [redacted]. On February
11, 1941, the veteran married [redacted], as is evidenced by a
marriage certificate signed by a Mohammedan priest and 6
witnesses.
In a letter dated in June 1945, the veteran asserted that
[redacted] was not his legal wife, that he did not sign a
marriage certificate, and that she had lived with him as a
concubine. In a letter dated in January 1947 the veteran
again asserted that he had not been legally married to any
woman before his marriage to [redacted]. An affidavit dated in
March 1947 referred to [redacted] as the "common-law wife" of
the veteran from 1932 to 1940. In a letter apparently signed
by [redacted] in May 1947, she acknowledged that she was "the
common-law wife" of the veteran from 1932 to 1940. In an
October 1948 letter, the veteran requested that the named
beneficiaries on his service records reflect that his wife
was [redacted]. In an August 1956 application for compensation,
the veteran reported that his marriage to [redacted] was his
first marriage.
[redacted], in a letter dated in 1976, initially claimed that
she and the veteran were married under Muslim ceremony on
February 15, 1934, however she later denied that she had
signed the 1976 letter and stated under oath that she and the
veteran were married by a military Chaplain on September 25,
1933. Any documentation of the marriage was apparently
destroyed as a result of the war. In support of her
contention, [redacted] has obtained an affidavit from [redacted]
and [redacted] who state that they actually attended the
wedding and a small reception afterwards. However, during a
subsequent field investigation, [redacted] indicated that he
had not known the veteran and [redacted] until 1936. An
affidavit from [redacted] and [redacted] also support her
claim that she and the veteran were married in September
1933. [redacted] told a field examiner that she lived at the
same base as the veteran and [redacted] before the outbreak of
World War II and knew [redacted] as the wife of the veteran.
The evidence suggests that the issue of whether or not the
veteran was legally married to [redacted] was explored in 1940
and that it was determined that there was no valid marriage,
i.e., that both the veteran and [redacted] were free to marry.
[redacted] in 1945 apparently wrote to the veteran's commanding
officer (CO) and claimed to be his legal wife. The veteran
denied this in a letter to his CO - the Board notes that it
is unlikely that veteran would lie to his CO if he had in
fact been married by a military chaplain. The evidence
suggests that the issue was decided in the veteran's favor at
that time inasmuch as [redacted] later acknowledged that she had
been his common-law wife. Also, if she was in fact married
by a military chaplain, the military should have provided her
with some written documentation which should not have been
destroyed by the war. She never claims that she ever had any
such documentation. Accordingly, the Board does not concur
with the April 1995 District Counsel opinion which found that
the veteran married [redacted] on September 25, 1933, in a civil
ceremony. Thus, inasmuch as there was no valid marriage to
Alfred and, although [redacted] lived with the veteran from June
1932 to 1939 and 6 children were born of this relationship,
common-law marriage is not recognized in the Philippines;
there was no legal impediment to the veteran's marriage to
[redacted].
The veteran married [redacted] in 1941. At the time of her
marriage, [redacted] states that she personally and honestly
believed that there was no legal impediment on the veteran's
part to marry her because, before their wedding and in
accordance with Muslim custom and tradition, elders of both
parties "clarified everything" and she had been assured
that there was no legal impediment on his part.
Accordingly, the Board finds that, inasmuch as there was no
valid marriage between the veteran and [redacted], her
relationship with the veteran did not pose a legal impediment
to his marriage with [redacted]. Thus, the veteran's marriage
to [redacted] in 1941 is valid and she may be recognized as his
surviving spouse for purposes of VA benefits.
ORDER
Entitlement to recognition of [redacted] as the surviving spouse
of the veteran for the purpose of VA benefits is granted.
RONALD R. BOSCH
Member, Board of Veterans' Appeals